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Opinion of the Court.

Mr. William WINKLEMAN, for the appellant.

Mr. N. Niles, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

The only question made on this record is, the decision of the court overruling the demurrer to defendant's fourth plea.

The action was replevin for certain articles of personal property described in the declaration alleged to have been taken by the defendant and detained by him.

The fourth plea was as follows:

“And for further plea in this behalf, said defendant says actio non, etc., because he says that at the time when, etc., he was sheriff of said county of St. Clair, and that on the 20th day of October, 1866, at said county, a landlord's warrant issued by James C. Hasselton against Henry Stricker was placed in the hands of said defendant as bailiff of said Hasselton, whereby said defendant was required and directed to distrain the goods and chattels of said Stricker in said county, where he then resided, for the sum of $200, being one year's rent due the said Hasselton on the 1st day of March, A. D. 1866, for certain land in said county and described in said warrant, demised by said Hasselton to said Stricker; and that by virtue of said warrant the defendant did, as such bailiff, on the 20th day of October, at said county, distrain the said goods and chattels in the declaration mentioned, to satisfy the said rent due as aforesaid under and by virtue of said warrant; and said defendant avers that the said goods and chattels so distrained were, on the said day and at the time of said distress made as aforesaid, the property of the said Stricker, and subject to said distress; without this, that the property of said goods and chattels, or any part thereof, at the said time when, etc., was in said plaintiff, as by said declaration is supposed, and this defendant is ready to verify, and prays judgment, etc.”

Opinion of the Court.

and as

The demurrer admits the facts stated in this plea, which are well pleaded, and nothing more. It adınits none of the inferences of law which may be drawn from the facts.

The fair intendment from the averments in this plea, is, that Stricker had rented certain premises from Hasselton, for one year, which expired on the 1st day of March, 1866, at which time he was indebted for rent in the sum of $200, to his landlord, Hasselton, and had abandoned the premises. The warrant was not issued until the 20th day of October following, more than seven months after the rent was due and payable.

By the counmon law, a distress warrant could not be issned after the termination of the lease, nor after the goods had been removed from the land out of which the rent issued. It was also requisite, as distress can only be for rent in arrears, rent does not becoine due until the last moment of the day when it is made payable, that a distress should not be taken until the next day after the rent became due, but a warrant given on that day to make distress generally would be good.

To remedy this, the general assembly of this State, on the 10th of February, 1857, passed an act providing, that, in all cases of the demise of lands or tenements, whether the rent reserved be payable in money, in specific articles of property, or in any part of the products of the demised premises, the landlord shall have the right to distrain the personal goods of the tenant for the period of six months after the expiration of the term for which the premises were demised; such distress to be made in the manner now provided by law, etc. Scates' Comp. 718.

The warrant in this case, having been issued more than six months after the rent had accrued and was in arrears, was without authority of law, and was null and void, affording no protection to the defendant who executed it. The demurrer reached this defect, and should have been sustained.

After six months, and the tenant has abandoned the premises, there can be no distress upon the goods of the tenant, although he will remain personally responsible to his landlord for the rent, which can only be recovered by the ordinary suit

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at law. Taylor's Landlord and Tenant, 237, referring to Tenboss v. Williams, 5 Cowen, 407, and the same case in the Court of Errors, 2 Wend. 148.

We are of opinion the court erred in overruling the demurrer to this fourth plea, and for the error the judgment must be reversed. The plea is no defense to the action.

The cause is remanded for further proceedings not inconsistent with this opinion.

Judgment reversed.

44 525 156 414 44 525 73a 217

FRANCIS WITTRAM

v.

ABRAN VAN WORMER.

1. PARTNER — when unable to bind the firm. Without the consent of his copartners, one partner cannot bind the firm of which he is a member by giving the firm note in satisfaction of his personal indebtedness.

2. So, where two parties formed a partnership, one putting in as stock his saw-mill and a quantity of saw-logs, and the other an equivalent in money, it was held, that the first party could not bind the firm by giving the firm note for a balance due upon the saw-logs, although the firm received the benefit of the logs.

APPEAL from the Circuit Court of St. Clair county ; the Hon. JOSEPH GILLESPIE, Judge, presiding.

The facts in this case are sufficiently stated in the opinion of the court.

Mr. WM. H. UNDERWOOD, for the appellant.

Mr. N. Niles, for the appellee.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

This was an action bronght by Van Wormer against De Clausel & Wittram, upon the following note:

Opinion of the Court.

18.

" $979.86.

St. Louis,

after date we promise to pay to the order of ourselves $979.86 for value received, negotiable and payable without defalcation or discount. DE CLAUSEL & WITTRAM."

. Indorsed, “DE CLAUSEL & WITTRAM."

On the trial the plaintiff, Van Wormer, testified that he was formerly in partnership in running a saw-mill with the defendant De Clausel ; that, in March, 1860, he went out of the firm, and afterward the defendant, Wittram, took his place, constituting the firm of De Clausel & Wittram; that they dissolved their partnership on the 1st of January, 1861; that, on the 20th of December, 1860, De Clausel gave this note to witness in payment of the balance due on a quantity of logs sold by him to the firm of De Clausel & Wittram, at the formation of their partnership.

The defendant, Wittram, testified that he never saw or heard of the note until this suit was brought, in 1867, and that the logs in question were a part of the stock put into the firm by De Clausel, on the formation of the partnership of De Clausel & Wittram; that he put in $3,418 in cash, and De Clausel put in the logs and mill.

The question in the case is, whether the sale of the logs by Van Wormer, at the dissolution of the old partnership, was to De Clausel alone, or to the firm, afterward formed, of De Clausel and Wittram.

On the trial the defendant asked the court to instruct the jury as follows:

“One partner has no right to give the note of the firm for his own private debt, without the consent of his copartners; and if this note was given by De Clausel to pay for logs, etc., which De Clausel put in the firm as a part of his (De Clausel's) capital stock, then the jury should find for defendants, unless Wittram consented to the making and indorsing of this note.”

The instruction was refused.

Syllabus.

Probably, the court refused this instruction, from the opinion that the same idea had been sufficiently expressed in another. We think, however, it shonld have been given, as it presented to the jury the true point in controversy more distinctly than it was presented in any other instruction. On the evidence the case is exceedingly doubtful. It is clear, from the testimony of the plaintiff himself, that the logs were sold by him when the old firm was dissolved. If they were purchased by De Clausel, in order to furnish his part of the capital stock of the new firm, and on his individual credit, the fact that the new firm received the benefit of the logs would not render the firm liable, nor would De Clausel alone have the power to bind it by the subsequent note. Watt v. Kirby, 15 Ill. 201. This was the meaning of the refused instruction; and, in view of the very conflicting evidence, we think there should be another trial, in which this point can be explicitly stated to the jury.

Judgment reversed.

SAMUEL W. LESSLEY et al.

V.
MARY LESSLEY.

44 527 164 570 44

527 98a 114

WIDOW - of her rights upon a renunciation of the will. Under the fifteenth section of the dower act, the widow of a person dying testate and leaving no children or descendants of children, upon renouncing the will, is entitled to one-half the estate in fee, and to the specific articles enumerated in the statute ; but she is not entitled to dower in the remainder of the real estate or to the whole of the personal property.

WRIT OF ERROR to the Circuit Court of Randolph county ; the Hon. Silas L. BRYAN, Judge, presiding.

The opinion of the court presents a sufficient statement of

the case.

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